Renewable Energy Update: Two New Nationwide Permits for Dredge and Fill Activities Under Section 404 of the Clean Water Act Now Effective for Renewable Energy Projects

March 22, 2012

by Scott Castro

On March 19, 2012, two new and 48 reissued Nationwide Permits (NWPs) for certain dredge and fill activities requiring authorization under Section 404 of the Clean Water Act or Section 10 of the Rivers and Harbors Act took effect. Nationwide Permits are issued by the Corps under Section 404(e) to provide a streamlined authorization process for dredge and fill activities having minimal adverse effects on the aquatic environment. Every five years, the Army Corps of Engineers issues revised and/or new Nationwide Permits. The last permits were issued in 2007, and expired on March 18, 2012. The two new NWPs affect renewable energy facilities, and projects qualifying for these Nationwide Permits should benefit from significant reductions in the time, effort and money necessary to obtain a Section 404 permit.

NWP 51

NWP 51 applies to "Land-Based Renewable Energy Generation Facilities", including the construction, expansion or modification of land-based renewable energy production facilities and attendant features. Identified under such facilities are solar, wind, geothermal and biomass facilities and their collection systems. Attendant features include, but are not limited to, roads, parking lots, utility lines and stormwater management facilities. NWP 51 applies to such projects affecting 1/2 acre or less of non-tidal waters of the U.S., or 300 linear feet of stream bed. In addition, on a project-by-project basis, the Division Engineer may waive the 300-foot limit for impacts to intermittent or ephemeral streams on a case-by-case basis.

NWP 52

Similarly, NWP 52 applies to "Water-Based Renewable Energy Generation Pilot Projects", including construction, expansion, modification or removal of water-based wind or hydrokinetic renewable energy generation pilot projects and attendant features. Like NWP 51, NWP 52 is subject to the 1/2 acre or 300 linear foot thresholds (which again can be waived by the District Engineer).

Continued Availability of Existing NWPs

Notably, existing NWPs, such as Nationwide Permit 12 for utility line activities, NWP 14 for linear transportation projects such as access roads, as well as other general NWPs, may continue to also be utilized by renewable energy facilities for discrete or "attendant" project facilities. Also, the new permits contain a grandfathering provision providing that projects that have commenced or are under contract to commence activities by March 18, 2012 will have an additional year to complete activities under their prior (2007) permits.

New and Revised General Conditions

The 2012 NWPs also include three new general conditions and three new definitions. Key among these revisions is the Corps' decision to split the definition of "single and complete project" into "single and complete linear project" and "single and complete non-linear project." Although this revision provides some clarity by distinguishing between linear and non-linear, it places greater emphasis on cumulative impacts and crossings within close proximity to one another, potentially giving the Corps further incentive to exercise its discretionary authority to impose additional conditions on projects.

Benefits of NWP 51 and NWP 52

The Corps has also revised the General Conditions that apply to activities authorized by a Nationwide Permit. Among other things, the Corps extensively discussed the circumstances under which mitigation would or would not be required for NWPs under General Condition 23. Regulated parties should be aware that individual Army Corps districts may impose additional, regional conditions on activities authorized under the NWPs.

Feasibility of NWP 51 and NWP 52

While NWP 51 and NWP 52 provide a streamlined process for qualifying projects, qualification is not an easy matter for most large-scale renewable energy projects. For example, the Nationwide Permit program includes thirty-one general permit conditions that must be met, including but not limited to restrictions on impacts to endangered species, species movement (including migratory birds, bald/golden eagles), navigation, water supplies/flows, soils, tribal rights, wild and scenic rivers, designated critical resource waters, and historic properties.

As with all NWPs, the applicability of NWP 51 and 52 may be limited based on regional and individual case factors. For example, the use of multiple NWPs for various discrete components of a project, such as NWP 12 for transmission lines, may be limited or precluded due to cumulative effects of the project. In fact, Corps division engineers are authorized to "regionally condition" the NWPs to restrict or prohibit their use where the discharges of dredged or fill material are likely to result in more than minimal adverse effects on the aquatic environment.

Also, as with a number of other NWPs, a "pre-construction notification" (PCN) is required for all proposed qualifying projects under NWP 51 and NWP 52. The PCN must (1) include a delineation of jurisdictional waters, (2) demonstrate the project has been designed to minimize impacts to the aquatic environment, and (3) show that project impacts will be below the 1/2 acre or 300 linear feet thresholds, and (4) identify potential mitigation for any disturbances to more than 1/10 acre of wetlands. The district engineer will review the PCN (approximately a 2 1/2 month process). If the NWP authorization is denied, the applicant may pursue an individual Section 404 permit, which is obviously time-consuming, expensive, and requires that the project be designed to pursue the least environmentally damaging practicable alternative ("LEDPA") requirement.

Conclusions

While NWP 51 and NWP 52 will prove useful for certain renewable energy projects, it is likely that they will largely benefit projects with smaller generation capacity that occupy a limited acreage. For larger, utility-scale renewable energy projects impacting jurisdictional waters, the applicability of NWP 51 and NWP 52 may be limited due to the larger area of surface disturbance typically required for such projects. Nonetheless, site selection and project design for larger renewable energy projects may serve to limit potential impacts to jurisdictional waters. Also, the potential waiver of the 300' linear feet of impacts to qualify under NWP 51 or NWP 52 may provide some additional possibilities for larger-scale projects.